The Folly of Medical Malpractice Reform


After seven years of demanding comprehensive health care reform, Republicans are the dog that has finally caught the car. With control of the Presidency and both houses of Congress, the GOP now has the power to make its own healthcare policy. But while rolling back the ACA appears to be on hold at least for the moment, the GOP is moving full steam ahead on a draconian “reform” of medical malpractice law.

Republicans argue that limiting a patient’s right to bring suit if they are injured or maimed by a medical practitioner or device will improve the health care system by lowering costs. Doctors, the GOP claims, perform unnecessary procedures which provide little or no clinical benefit, to decrease the chance that they will be sued. This drives up the costs of health care for everyone. This being the case, the reasoning goes, tougher malpractice laws would benefit the entire system.

A good story, but ultimately a fictitious one. Under Governor Rick Perry, Texas passed a cap on medical malpractice damages and the results have been underwhelming. According to healthcare economist Aaron Carroll,  “since tort reform, the number of doctors per population remains stable, health care costs have gone up (along with insurance costs), and the number of uninsured remains the worst in the nation.” He adds that those who believe tort reform has benefited Texas “couldn’t be more wrong.”

Texas isn’t the only state to have tried tort reform to aid its healthcare system. Then-Governor Jeb Bush passed a bill in 2003 that produced equally tepid results. In a surprising 2014 decision, the conservative Florida Supreme Court struck down the damages cap imposed by Florida’s politicians. Writing for the Court, Justice R. Fred Lewis concluded that the legislature’s damage cap has the effect of saving a modest amount for many by imposing devastating costs on a few.”

The proposed bill in the House would not improve upon state legislation; indeed, it would exacerbate problems with state laws. First, local legislation was typically aimed at protecting honorable doctors who made a mistake. The GOP’s federal bill is a give-away to Big Pharma and the medical device industry. Instead of protecting solo practitioners, this bill will immunize Fortune 500 companies from having to pay the full cost of injuries their products inflict upon everyday people. Second, it would impose a one-year statute of limitations upon a consumer discovering an injury. This would be among the shortest and most stringent limits of any state bill. Third, the mere fact that federal government is intruding upon state common law is surprising. Several members of the Tea Party have indicated that they are uncomfortable with what amounts to a giant federal takeover of state law.

Medical malpractice is not rare. In his book, The Medical Malpractice Myth, Penn Law Professor Tom Baker shows that most victims of medical malpractice actually do not use the civil justice system to recover damages. Yet, Republicans led by Department of Health and Human Service Secretary Nominee Tom Price, want to make it much harder for patients to bring a lawsuit anyway. This, despite the fact that medical liability insurance is cheaper than it was in 2001—even without adjusting for inflation. Michael Matray, editor of the Medical Liability Monitor, says, “[i]t’s a wonderful time for doctors looking for coverage, and it’s never been better for insurers.”

Our healthcare system is not perfect—far from it. But preventing deserving patients from seeing the inside of a courtroom and denying those who win their case the right to a full recovery is no way to fix our healthcare system. That’s just a give-away to large insurance companies, Big Pharma, and giant hospitals at the expense of unlucky everyday patients. Perhaps Tom Price doesn’t know better, or perhaps that’s exactly what he wants.